Welder Lawsuits For Asbestos-Related Injuries On The Rise

You have probably seen the ads: lawyer-produced mesothelioma spots targeting shipyard and other industrial workers diagnosed with asbestos-related injuries. Many of these ads are now specifically targeting welders and, predictably, increasing numbers of lawsuits are being filed by welders claiming injury as a result of occupational asbestos exposure. A number of these suits are naming welding consumables and safety equipment manufacturers and distributors. There are significant differences between manganese-related and asbestos-related claims. Accordingly, while the trends remain positive for manganese exposure litigation, distributors should be mindful of the unique nature of asbestos litigation risks.

“The very nature of the work welders performed often required them to use products that contained asbestos. The most common among these products were welding rods that both contained asbestos and were coated with asbestos. “Even in instances where protective gear might have been worn, the gear itself may have posed health risks. In some cases, the clothes or protective wear contained asbestos to make it fireproof and heat resistant. Welders often wore gloves made with asbestos and used asbestos blankets to ward off high levels of heat. If any of these garments became worn, asbestos fibers could easily be released into the air and welders were once again at risk of inhaling harmful asbestos fibers.”

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What Is the Risk?
While asbestos has largely been banned in the United States for more than two decades, many welders were exposed to asbestos during the course of their occupation. Welders often worked on or around asbestos-coated surfaces and equipment, including boilers, machinery and pipes. Additionally, certain welding rods and safety equipment used by welders also contained asbestos. Asbestos fibers are a recognized cause or contributing factor to several known diseases, including mesothelioma, asbestosis and lung cancer. Asbestos-related injury and disease due to exposure to asbestos normally takes many years, often decades, to manifest itself through diagnosable symptoms. Accordingly, there is a potential for a sizable pool of plaintiffs. Furthermore, when welders file asbestos exposure lawsuits, they typically name as defendants all sources of possible exposure, including manufacturers and distributors of asbestos-related rods and equipment.

Why Is Asbestos Litigation Different?
There are several differences between manganese-related welding litigation and asbestos claims. First, unlike the questionable non-specific neurological maladies claimed by welders as a result of exposure to manganese in welding fumes, asbestos exposure is known to cause or contribute to serious disease. Second, epidemiological studies have shown an increased incidence of cancer risk among welders, even after accounting for other causes (Mannetje, 2011). On the other hand, the epidemiological research fails to support increased risk of neurological injury among welders. Similarly, there appear to be significantly greater numbers of welders suffering from mesothelioma, asbestos and lung cancer, compared to the relatively small numbers of welders suffering from legitimate neurological injuries or disease. In short, there appear to be greater numbers of sick welders due to exposure to asbestos, than manganese.

Are Asbestos Claims Covered by Insurance?
Probably not. Domestic insurers have long excluded asbestos claims from coverage. However, because exposure periods for asbestos are so long, it is possible that a claim could allege an exposure period that predates the asbestos exclusion. Retrieve and review all historical insurance policies which may provide coverage for any period of exposure alleged. However, exposure during the last 20 years will not be covered.

Be Prepared.
The risk of being named in an asbestos-related lawsuit is increasing. Review past product catalogs and prepare an inventory of any products sold or distributed by your company which contained asbestos, including rods and safety equipment. Plaintiffs often are unaware from where consumables and equipment were obtained and therefore sue all known distributors. If your company did not ever distribute  or sell any asbestos-containing products, you will be in a position to quickly move for dismissal from any suit in which you are named. On the other hand, if your company has sold asbestos-containing consumables or equipment in the past, a product inventory may help you establish a product identification defense.

(Disclaimer: The information provided in this column is a service provided by GAWDA for informational purposes only and should not be considered legal advice.)

Gases and Welding Distributors Association
Michael Degan Meet the Author
Michael Degan, Esq., is GAWDA’s joint defense fund coordinating counsel for welding fume litigation and a partner with the law firm of Husch Blackwell LLP. Members can reach him at 402-964-5000 and mike.degan@huschblackwell.com.